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Why would a bank still retain a lien on property even after they cancelled a credit card debt?

Saugerties, NY |

The sale of a relative's estate has hit a snag. A lien for credit card debt was discovered when the title search was done. Although the debt was subsequently cancelled, the buyers attorney is saying he is still concerned that there is not a clear title since the bank holding the lien, although having cancelled the debt, will not remove the lien. Why can this be? The buyer is asking for this amount to be taken off the selling price of the property. I don't see what difference this would make regarding the lien. This is a cash deal and not involving obtaining a mortgage from a bank.

Attorney Answers 4

Posted

If the title company is turning up a lien it is most likely in the form of a judgment. If the debt has been cancelled there should be some paperwork showing that the debt was cancelled and your attorney should be able to prepare a satisfaction of the judgment to be sent to the creditor for signature. If the bank has cancelled the debt they are obligated to remove the lien. Your attorney should be able to get them to sign the satisfaction or possibly settle the lien for some nominal amount. If not, he can bring a bar claim action to declare the lien invalid. The alternative would be to escrow money (usually double the amount of the lien) until the lien is satisfied or until it expires (ten years after filing if it is a judgment).

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3 comments

Asker

Posted

I contacted the estate attorney to clarify to me what was going on and this is his explanation: "Even though the debt was canceled, the judgment lien was not satisfied of record with the County."

Richard J. Chertock

Richard J. Chertock

Posted

That is precisely what I expected. they are obligated to issue a satisfaction. Have your attorney prepare the satisfaction and forward it to the bank for signature. He should be able to convince them to sign with relative ease.

Asker

Posted

He said that's what he's been trying to do. Why would the bank so reticent on granting a satisfaction when they were willing to cancel the debt on the estate?

Posted

Have your lawyer work with the title company to seek a resolution. If the debt was cancelled, then you need proof that the lien was released or satisfied.

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Posted

If I were representing the buyer I would also definitely want the lien released or the amount knocked off the price. This is really not a complicated question and it's up to the seller and their lawyer and the title insurer to contact the creditor and get it resolved-- or pay the difference.

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Posted

Regardless of whether you're securing a mortgage, a buyer wants to obtain clean title to a property, otherwise they risk issues transferring themselves later on. As my colleague indicates, if I represented the buyer, I would recommend them doing the same thing. As to the reason it remained in place, you'd have to look to the logistics of how the debt was "cancelled". If the creditor failed to vacate the judgment, then the lien will remain in place. Have your attorney work with the title company to find a resolution.

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